The making of appropriate contemporaneous notes in medical
records is best practice for clinical care, but also to facilitate
the defence of a claim should an adverse event occur.
The plaintiff, Mrs Smythe consulted Dr Burgman between 15
October 2010 and March 2011. On 14 March 2011 Mrs Smythe complained
of pain in her left foot. Dr Burgman diagnosed infection and
prescribed antibiotics. Mrs Smythe returned on 22 March 2011 with
two complaints: pinkness and tenderness in the left foot, and a
perianal abscess. Dr Burgman prescribed another course of
antibiotics. On 29 March 2011, Mrs Smythe wanted to see Dr Burgman
again for pain in her left foot but she saw her husband's
general practitioner Dr Follent instead as Dr Burgman was
unavailable. On 30 March 2011 Dr Follent referred Mrs Smythe to
Tweed Hospital where an ultrasound revealed an arterial clot in the
left leg. On 20 April 2011 the left leg was amputated below the
The central question was whether Dr Burgman ought to have
diagnosed arterial ischemia on 14 March 2011 even though it had an
atypical presentation. It was necessary to establish whether or not
Dr Burgman had felt the pulses in the feet on the first examination
on 14 March 2011. There was no notation about the pulses in the
clinical notes. Dr Burgman said she did check the pulses and found
them normal, but did not write it down. Mrs Smythe alleged her
pulses were not examined. Dr Follent who examined Mrs Smythe on 30
March 2011 found abnormal pulses and referred Mrs Smythe to Tweed
Dr Burgman owed a duty of care to Mrs Smythe on 14 March 2011 to
consider arterial ischemia amongst other diagnoses. In order to
confirm or exclude that diagnosis she was required to take Mrs
Smythe's dorsalis pedis pulse. If the pulse was abnormal then
Dr Burgman would not have been able to exclude the diagnosis
without further investigation. If the pulse was normal then Dr
Burgman was justified in excluding the diagnosis (which she did)
and proceeding to an alternative diagnosis of infection. The Court
found Dr Burgman had considered arterio-ischemia and reasonably
rejected it after having taken Mrs Smythe's dorsalis pedis
pulses on both sides and found them to be normal on 14 March
Notwithstanding the absence of a note of it in the clinical
notes, the Court accepted expert opinion and Dr Burgman's oral
evidence that she had examined the pulses. Mrs Smythe therefore
failed to establish a breach of duty by Dr Burgman, and lost her
case. The causation issue in the case was whether amputation would
or could have been avoided if ischemia was diagnosed at the first
examination on 14 March 2011. The Court found there was
insufficient evidence to assess the value of the chance of avoiding
amputation if an earlier diagnosis had been made.
There were competing versions of what occurred at the
consultation on 14 March 2011, and Dr Burgman did not have relevant
notes to confirm her assertions. Unfortunately for Mrs Smythe the
Court did not accept her evidence in material respects. The Court
preferred the evidence of Dr Burgman about the pulses in light of
the timing of various versions of what had occurred given by the
plaintiff, compared to contemporaneous business records including
earlier versions of Mrs Smythe's written statements provided to
What can be learned from this case?
Practitioners should be aware of the importance of making a note
of all significant findings, whether positive or negative. In this
case the general practitioner had taken a note of abnormal findings
not of the normal findings which were relevant to excluding a
differential diagnosis that was low on her list, considering the
whole clinical picture. In this instance the general practitioner
was able to defend the claim. In large measure this was because of
adverse findings on the credibility of the plaintiff. In many cases
the plaintiff is given the benefit of the doubt, and will succeed.
A simple message for practitioners to take from this case is always
to record their findings on the signs relevant to each differential
diagnosis. In particular, if examining pedal pulses, make a note of
it, whether they are abnormal or normal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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